Wesley Luke Grimsley and Regina Lee Grimsley appeal their convictions of five counts of child molestation. Regina Grimsley also appeals her additional conviction of one count of aggravated child molestation. The five counts of child molestation arise from Wesley and Regina Grimsley having sexual intercourse in the presence of five children between the period January 1, 1994 and July 24, 1996. The children were approximately nine to fourteen years of age at the time. The Grimsleys were the parents of two of the children, W. and J. Two of the children, C. and A., were the nephew and niece, respectively, of Wesley Grimsley. The third child, C. P. E., apparently was not related to the Grimsleys. The aggravated child molestation charge arises from Regina Grimsley committing an act of oral sodomy with one of the female children during the same time period.
Case No. A98A1403 (Regina Grimsley)
Similar Transaction Evidence.
Regina Grimsley’s sole contention is that the trial court erred in admitting evidence of similar transactions which occurred between herself and some of the child victims. She cites no cases in support of her contention. Rather, she argues that the alleged similar transaction evidence was so vague as to time, place, and circumstances as to make it impossible for her to contest it; that it was inherently unfair to offer the evidence as similar transaction evidence rather than indicting her for it because it lessened the burden of proof; and that it violated due process and was a breach of the trial court’s discretion to allow the similar transaction evidence to be admitted when the state could have sought an indictment for such conduct thereby requiring its proof beyond a reasonable doubt.
*782
As these are the only grounds argued in support of this enumeration of error, all other grounds for error are deemed abandoned, including any contention that the evidence at issue failed to meet the test of
Williams v. State,
We first address Regina Grimsley’s argument that it is inherently unfair and violates due process for the court to allow conduct to be admitted as similar transaction evidence when the state could have sought an indictment for such conduct. Her assertion of this particular error, unsupported by any citation of legal authority is far from persuasive, as it is a general rule under Georgia law, that the decision of whether to prosecute and what charges to file are decisions that rest in the prosecutor’s discretion.
Noeske v. State,
Ms. Grimsley also contends that the similar transaction evidence was too vague. The notice of the state’s intent to present evidence of similar transactions asserted that Regina and Wesley Grimsley, acting together as parties to the crime, between January 1, 1993 and July 24, 1996, in Baldwin County, repeatedly engaged in sexual intercourse in the presence of J. and W. The notice further listed by name the persons who witnessed these similar transactions. This was adequate to place Ms. Grimsley on notice as to the type of evidence sought to be introduced by the state. At trial, the state introduced the following similar transaction evidence: K. G. testified that the victim, J., had repeatedly told her she had watched the Grimsleys have sex, and K. G. had repeatedly removed the victims, J. and W, from the immediate vicinity where the Grimsleys were having sex. A. F., a victim, testified she once removed J. and W. from the Grimsleys’ bedroom when the couple was having sex. A. F. also testified that J. told her that she had seen her parents having sex. C. G. testified that, when she was 14 years old, she heard the Grimsleys having sex in the bedroom of their house and she also heard J. and W. playing in that same bedroom while the sex act was occurring. About ten or fifteen minutes later, C. G. saw the Grimsleys and the two children *783 come out of the bedroom.
It is immaterial to this particular enumeration of error whether the trial court admitted this evidence as similar transaction evidence. Each count of the indictment averred that the child molestation being charged occurred between January 1, 1994 and July 24, 1996. However, the dates in the various counts of the indictment were not averred to be material. “The general rule is that when the exact date of the commission of the crime is not a material allegation of the indictment, the commission of the offense may be proved to have occurred any time within the statute of limitations.” (Citation and punctuation omitted.)
Martin v. State,
The testimony of K. G. and A. F. regarding statements made by J. about seeing her parents engaged in sex was admissible as res gestae evidence. OCGA § 24-3-3. Moreover, although J. and W., who are mentally retarded, were not called as state witnesses, they were available to be called as witnesses. Thus, the statements attributed to J. by K. G. and A. F. were admissible pursuant to OCGA § 24-3-16. “It is a cardinal rule of evidence that if evidence is duly admissible under any legitimate theory, it should be admitted even though it does not qualify for admission under one or more other evidentiary theories. That is, generally evidence should be admitted if it is admissible for any legitimate purpose. [Cits.]”
Boatright v. State,
The transcript contains admissible evidence of the Grimsleys’ acts of sexual intercourse in the presence of children, of open and inappropriate sexual activity by J. and W. observed by others, and of Ms. Grimsley’s affirmative admission in open court that W. put her mouth on Ms. Grimsley’s “private parts.” Thus, the similar transaction evidence here at issue could not have shocked the jury, or made it highly probable that its admission contributed to the verdict, given
*784
all the sordid details of this case. See
Tuggle v. State,
Case No. A98A1404 (Wesley Grimsley)
1.
Sufficiency of Evidence.
The transcript contains testimony that Wesley Grimsley engaged in acts of sexual intercourse with Regina Grimsley in the presence of the five child victims. However, Mr. Grimsley claims there exists no evidence of intent as required by OCGA § 16-6-4 (a). “The intent with which an act is done is peculiarly a question of fact for determination by the jury and even when a finding that the accused had the intent to commit the crime charged is supported by evidence which is exceedingly weak and unsatisfactory the verdict will not be set aside on that ground. . . . Intent, which is a mental attitude, is commonly detectible only inferentially, and the law accommodates this. OCGA § 16-2-6.” (Citations and punctuation omitted.)
Branam v. State,
Mr. Grimsley also claims that he did not commit any immoral or indecent acts, as required by OCGA § 16-6-4 (a), because he engaged in sexual intercourse with his own wife in his own home. We reject this contention. The record establishes several instances where the Grimsleys engaged in sexual activity in the presence of their own two children, and that they engaged in sexual intercourse in the presence of the five children when the children were playing a video game in the living room of the Grimsleys’ home. The children left and went into another room when this occurred. By their open and intentional act of sexual intercourse in the presence of all five children, the Grimsleys converted their residence from a constitutionally protected zone of privacy into a public place where their consenting sexual activity, albeit between husband and wife, was transformed from acceptable and protected marital conduct into an immoral and indecent act within the meaning of OCGA § 16-6-4 (a). Cf.
Greene v. State,
On appeal the evidence must be viewed in the light most favorable to support the verdict, and appellant no longer enjoys a presumption of innocence; moreover, an appellate court determines evidence sufficiency and does not weigh the evidence or determine witness credibility.
Hendrix v. State,
2. Failure to Give Requested Charge. The trial court did not err in declining to give Wesley Grimsley’s written request to charge on specific intent. The requested charge reads that it is the specific intent to “sexually exploit” a young child’s “body” in some form that makes the immoral or indecent act particularly harmful. The word “exploit” is defined both as “to utilize” especially for profit and “to use selfishly for one’s own end.” Webster’s Encyclopedic Unabridged Dictionary (1989 ed.). The requested charge would also require the jury to acquit the defendant if it finds “that the defendant did not have the specific intent to arouse or satisfy his sexual desires through the medium of using a young child’s body,” when defendant engaged in sexual intercourse in the presence of a child or children under 16 years of age. (Emphasis supplied.)
Viewed in its entirety, the requested charge would be confusing and potentially misleading to the jury. A defendant need not have intended to actually use the child’s body in some physical capacity in order to commit an act of molestation. It is sufficient if a person utilizes or capitalizes on a child’s mere
presence
as a witness to the person’s intentional immoral or indecent act, provided the act is accomplished “with the intent to arouse or satisfy the sexual desires of either the child or the person.” OCGA § 16-6-4 (a); see generally
Gunter v. State,
A request to charge must itself be correct, and even perfect; otherwise, the trial court’s refusal to give it will not be cause for reversal. See
Lubiano v. State,
Judgments affirmed.